401 F.

3d 1

Ralph J. CIMON, III, Plaintiff, Appellant,

v.
Christopher GAFFNEY; Guardian Life Insurance Company of
America, Defendants, Appellees.
No. 04-1631.

United States Court of Appeals, First Circuit.

Heard December 9, 2004.
Decided March 10, 2005.

C. Donald Briggs, III, with whom Briggs & Counsel was on brief for
appellant.
Russell B. Pierce, Jr., with whom Norman, Hanson & Detroy, LLC was on
brief for appellee, Christopher Gaffney.
Geraldine G. Sanchez, with whom Gavin G. McCarthy and Pierce
Atwood LLP were on brief for appellee, Guardian Life Insurance
Company of America.
Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and
HOWARD, Circuit Judge.
STAHL, Senior Circuit Judge.

In 2003, Ralph Cimon ("Ralph"), who had purchased a disability insurance

policy from Guardian Life Insurance Company of America ("Guardian"), sued
Guardian and Christopher Gaffney ("Gaffney"), the Guardian agent who had
sold him the policy, after Guardian terminated his policy due to his failure to
make a timely premium payment. The suit was brought in Maine.1 Guardian
filed a motion for summary judgment and Gaffney filed a motion to dismiss. In
response to the motion to dismiss, Ralph filed a motion to transfer his claims
against Gaffney to the United States District Court for the District of
Massachusetts. The district court granted both the motion for summary
judgment and the motion to dismiss, and it denied the motion to transfer. Ralph
now seeks review of the grant of summary judgment and the denial of his

request to transfer. We affirm the grant of the motion for summary judgment
and vacate the denial of the motion to transfer.
I. Background
2

We review the facts in the light most favorable to Ralph. See, e.g., McAdams v.
Mass. Mut. Life Ins. Co., 391 F.3d 287, 290 (1st Cir.2004) (recounting the facts
"in the light most favorable to the party opposing summary judgment").

In 1993, Guardian issued a disability insurance policy to Ralph.2 The policy

was "Non-Cancellable and Guaranteed Renewable to Age 65" and was "issued
in consideration of ... the payment of premiums," which were to be paid on a
quarterly basis. The policy listed "only one condition for [its] renewal...: the
premiums [had to] be paid as [the policy] required." And, the policy provided
that "[t]he payment of any premium will not continue this policy in force
beyond the date when the next premium is due, except for [a thirty-one day]
grace period...."

From 1993 to 2000, Ralph timely paid his premiums. However, he failed to pay
his quarterly premium that was due in December 2000 and failed to make
subsequent payments due in March 2001, June 2001, and September 2001.

Late in the summer of 2000, Ralph and his wife, Jean Cimon ("Jean"), moved
from Massachusetts to Maine. Prior to moving, Jean mailed a change of address
card to Guardian. At the time of the move, Jean also called Gaffney to inform
him of the move. During the call, Jean gave Gaffney their new Maine address
and telephone number, and she attempted to schedule an appointment for Ralph
so that he and Gaffney could discuss his insurance coverage. Gaffney, however,
told Jean that he was busy and would call her back at a more convenient time.
Gaffney never called Jean back, and Jean did not make any further attempt to
contact Gaffney.

On November 29, 2000, Guardian sent Ralph a letter stating that he had a
premium payment due on December 28, 2000. The premium due date came and
went without Guardian receiving a payment. On January 28, 2001, Guardian
sent Ralph a second letter in which it offered to accept a late payment. Then, on
March 6, 2001, having still not received the December 28, 2000 payment,
Guardian sent Ralph a third letter informing him that his policy had lapsed.3
Ralph did not receive any of the letters, which were apparently sent to an
incorrect address in Maine.
From 1993 to 2000, Ralph had received letters on a quarterly basis alerting him

From 1993 to 2000, Ralph had received letters on a quarterly basis alerting him
of his premium payment due dates. By 2000, Ralph had become accustomed to,
and relied on, receiving such letters. In fact, Ralph paid his premiums only after
receiving notice that payments were due. Thus, because Ralph never received a
letter reminding him to pay his December 28, 2000 premium, he never paid
that premium (or the three premiums due thereafter).

In October of 2001, Ralph became disabled. On November 16, 2001, Jean

called Guardian and learned that the policy had been cancelled. On November
27, 2001, Ralph sent a letter to Guardian requesting that the policy be reinstated
and giving notice that he intended to file a claim pursuant to Mass. Gen. Laws
ch. 93A, 24 if Guardian refused his request. 5 Ralph also sent Guardian a
check for the unpaid premiums. Guardian refused to reinstate the policy.

As a result, in October 2003, Ralph sued Guardian and Gaffney in Maine,

claiming that he was entitled to damages because the two "breached numerous
duties of care" they owed to him under the policy in connection with their
failure to ensure that premium notices were sent to his correct address. In
addition, Ralph alleged that he was entitled to recover under Mass. Gen. Laws
ch. 93A, 2 for Guardian and Gaffney's refusal to settle his claim and reinstate
the policy. 6 Ralph also asserted that the two breached the policy, and should be
estopped from terminating the policy, due to their failure to send premium
notices to his correct address.

10

In response, Guardian filed a motion for summary judgment and Gaffney filed a
motion to dismiss. Guardian, citing Mass. Gen. Laws ch. 175, 110B,7 insisted
that it was entitled to summary judgment because the policy had lapsed as a
matter of law.8 The district court agreed and allowed Guardian's motion. 9
Gaffney moved for dismissal based on lack of personal jurisdiction.10 Ralph
responded by filing a motion to transfer the action against Gaffney to
Massachusetts pursuant to 28 U.S.C. 1631.11 In granting Gaffney's motion to
dismiss, the district court ruled that it lacked personal jurisdiction and that
transfer would not be in the interest of justice.12 Ralph seeks review of the
district court's grant of Guardian's motion for summary judgment and refusal to
transfer the action against Gaffney.13

II. Discussion
11

We first consider whether the district court erred in granting Guardian's motion
for summary judgment and then decide whether it erred in denying Ralph's
motion to transfer.

12

A. The Grant of Guardian's Motion for Summary Judgment

13

We review the grant of a motion for summary judgment de novo. GTE

Wireless, Inc. v. Cellexis Int'l, Inc., 341 F.3d 1, 4 (1st Cir.2003). Summary
judgment is appropriate only if the record reveals "that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c). We may affirm a grant of summary
judgment on any ground supported by the record. See Geffon v. Micrion Corp.,
249 F.3d 29, 35 (1st Cir.2001).

14

The district court granted Guardian's motion for summary judgment based on
its finding that, under Mass. Gen. Laws ch. 175, 110B,14 Ralph's policy
automatically terminated when he failed to pay the December 2000 premium
within three months of its due date. We think that the district court was wrong
to interpret section 110B as providing for automatic termination of a policy
after three months for nonpayment of a premium. We read the statute as
providing a degree of protection for the insured by putting limits on an
insurance company's contractual ability to cancel a policy based on nonpayment
of a premium; we do not read it as providing for termination as a matter of law.
Still, the statute does not prohibit an insurance company from terminating a
policy in accordance with the policy's terms for nonpayment of a
premium. Rather, it simply provides that a policy cannot be terminated for
nonpayment of a premium until three months after the date on which the
premium was due (unless notice was sent in accordance with the statute). See
supra note 7.

15

Here, the policy stated that it would terminate due to a missed premium
payment: "The payment of any premium will not continue this policy in force
beyond the date when the next premium is due...."15 And, starting with the
December 28, 2000 payment, Ralph missed four consecutive premium
payments and did not attempt to tender a late payment until November of 2001.
Thus, regardless of whether Guardian sent notice of the December 28, 2000
payment deadline, the policy terminated pursuant to its terms on March 28,
2001 three months after the due date of the first missed premium and well
before Ralph attempted to tender a late payment in November of that year.16

16

Ralph argues that Guardian should be estopped from terminating the policy
pursuant to his nonpayment of the December 28, 2000 premium because he
relied on Guardian to send notices of premium payment deadlines before
making such payments 17 and Guardian failed to send proper notice of the
December 28, 2000 deadline.18 To establish that Guardian should be estopped

from terminating the policy due to the missed premium, Ralph must convince
us that, among other things, there is an equitable defense available to an insured
who violates a contractual obligation and he acted reasonably in relying on
Guardian to remind him of the December 28, 2000 payment deadline before
making that payment. See Turnpike Motors, Inc. v. Newbury Group, Inc., 413
Mass. 119, 596 N.E.2d 989, 993 (1992) ("It is ... necessary ... that the reliance
of the party seeking the benefit of estoppel must have been reasonable.").
17

We think that even if there were an equitable defense available, Ralph would
not be entitled to invoke it because his reliance on Guardian to remind him of
the December 28, 2000 payment deadline was unreasonable. Ralph missed four
consecutive quarterly payments (and, in so doing, failed to tender a premium
payment for more than a year) due to his claimed reliance on Guardian. Ralph's
reliance was patently unreasonable, and therefore, he would not be entitled to
benefit from an equitable remedy even if one were available.

18

Because the policy terminated according to its terms on March 28, 2001 due to
a missed premium payment (regardless of whether Guardian sent suitable
notice of the payment deadline), Ralph's claims, other than his estoppel claim,
fail. And, because Ralph cannot show that his failure to pay the missed
premium was reasonable, his estoppel claim likewise fails. The grant of
Guardian's motion for summary judgment is affirmed.

19

B. The Refusal to Transfer the Action Against Gaffney

20

We now address whether the district court erred in denying Ralph's motion to
transfer the action against Gaffney from Maine to Massachusetts pursuant to 28
U.S.C. 1631. We review a refusal to transfer for abuse of discretion. See Hill
v. U.S. Air Force, 795 F.2d 1067, 1070 (D.C.Cir.1986).

21

Section 1631 directs a district court to transfer a case in which there is "a want
of jurisdiction, ... if [transfer] is in the interest of justice." Here, the district
court determined that transfer would not be in the interest of justice because it
was granting Guardian's motion for summary judgement. The district court's
determination would have been reasonable if Ralph's claims against Gaffney
were entirely derivative of his claims against Guardian. But, we do not
understand that to be the case; rather, we understand Ralph's claims against
Gaffney to rest on independent obligations that Gaffney owed to Ralph. For
example, Ralph's claim that Gaffney "breached numerous duties of care" is
premised in part on Gaffney's duty to inform Guardian of Ralph's new Maine
address. Accordingly, we find that the district court erred in denying the motion

to transfer on the ground given.

22

Nevertheless, it may be that there are other grounds on which to deny transfer,
as urged on us by Gaffney. See Britell v. United States, 318 F.3d 70, 75 (1st
Cir.2003) ("[I]f an action ... is fanciful or frivolous, it is in the interest of justice
to dismiss it rather than to keep it on life support (with the inevitable result that
the transferee court will pull the plug)."). The relevant claims were based on a
conversation that Jean had with Gaffney late in the summer of 2000, more than
three years before Ralph filed suit in the fall of 2003. Consequently, it appears
that the common law claims against Gaffney are time-barred. See Mass. Gen.
Laws ch. 260, 2A ("Except as otherwise provided, actions of tort, actions of
contract to recover for personal injuries, and actions of replevin, shall be
commenced only within three years next after the cause of action accrues.").

23

Although the remaining claim, based on Mass. Gen. Laws ch. 93A, is not timebarred, see Mass. Gen. Laws ch. 260, 5A ("Actions arising on account of
violations of any law intended for the protection of consumers, including...
chapter ninety-three A[,] ... shall be commenced only within four years next
after the cause of action accrues."), it nonetheless is barred if Ralph failed to
provide Gaffney with the pre-suit notice required by Mass. Gen. Laws ch. 93A,
9(3).19 See, e.g., Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812, 333
N.E.2d 202, 204 (1975) ("A demand letter listing the specific deceptive
practices claimed is a prerequisite to suit and as a special element must be
alleged and proved."). Although Ralph sent a letter that gave notice of his Mass.
Gen. Laws ch. 93A claim to Guardian, it is not clear that he also sent a copy of
that letter to Gaffney.

24

In light of the above, we vacate the denial of Ralph's motion to transfer20 and
remand the action against Gaffney for the district court to reconsider whether
transfer is in the interest of justice. 21

25

The grant of Guardian's motion for summary judgment is affirmed; the denial
of Ralph's motion to transfer is vacated and the action against Gaffney is
remanded for proceedings consistent with this opinion.

Notes:
1

The action was originally filed in state court, but it was removed to the United
States District Court for the District of Maine pursuant to that court's diversity
jurisdiction

In 2001, Guardian merged with, and became the successor in interest to,
Berkshire Life Insurance Company, which actually issued the policy in
question. For ease of reference, we refer to the relevant insurance company as
Guardian throughout

It is not clear whether this final letter stated that the policy had already lapsed
or that the policy would lapse if Ralph failed to pay the premium by a specified
date. For purposes of this appeal, we assume it said that the policy had already
lapsed

The statute states that "[u]nfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce are ... unlawful."
Mass. Gen. Laws ch. 93A, 2(a)

It is not clear from the record whether Ralph sent a similar letter to Gaffney

"Unfair claim settlement practices" constitute unfair methods of competition

and unfair or deceptive acts or practices in the business of insurance under
Mass. Gen. Laws ch. 93A, 2. Mass. Gen. Laws ch. 176D, 3(9)

Section 110B provides:

No policy of insurance ..., except a policy which by its terms is cancellable by
the company or is renewable or continuable with its consent, or except a policy
the premiums for which are payable monthly or at shorter intervals, shall
terminate or lapse for nonpayment of any premium until the expiration of three
months from the due date of such premium, unless the company within not less
than ten nor more than forty-five days prior to said due date, shall have mailed
... a notice showing the amount of such premium and its due date. Such notice
shall also contain a statement as to the lapse of the policy if no payment is
made as provided in the policy. If such a notice is not so sent, the premium in
default may be paid at any time within said period of three months.... No action
shall be maintained on any policy to which this section applies and which has
lapsed for nonpayment of any premium unless such action is commenced
within two years from the due date of such premium.
Mass. Gen. Laws ch. 175, 110B.

In moving for summary judgment, Guardian also argued that all of Ralph's
claims were time-barred pursuant to the last sentence of Mass. Gen. Laws ch.
175, 110BSee supra note 7. The district court did not address this argument
and, without passing on its merits, neither do we.

Because the district court found that "the policy terminated by law [due to the
fact that the December 2000 premium remained unpaid three months after it
was due] without any requirement of notice to [Ralph]," and because all of
Ralph's claims against Guardian were based on its refusal to accede to his
demand that the policy be reinstated and its failure to send premium notices to
his correct address, the district court decided that Guardian was entitled to
summary judgment

10

Gaffney also moved for dismissal based on improper venue and Ralph's failure
to state a claim on which relief could be granted

11

Ralph also responded by arguing that the court could exercise jurisdiction over
Gaffney. Section 1631 of Title 28 provides:
Whenever a civil action is filed in a court ... and that court finds that there is a
want of jurisdiction, the court shall, if it is in the interest of justice, transfer
such action ... to any other such court in which the action ... could have been
brought at the time it was filed....

12

The district court determined that transfer would not be in the interest of justice
solely because it was granting Guardian's motion for summary judgement

13

Ralph does not challenge the district court's ruling that it lacked personal
jurisdiction over Gaffney

14

There is no dispute that Massachusetts law governs this action

15

Although the policy stated that there would be a grace period following a
missed premium payment of only thirty-one days, we have not been presented
with sufficient evidence that Guardian complied with section 110B's premium
notice requirement. Therefore, we cannot say that Guardian was entitled to
terminate the policy at the end of the thirty-one day grace period (that is, prior
to the expiration of section 110B's three-month period)

16

Although Guardian sent Ralph notice that the policy had lapsed on March 6,
2001, prior to the date on which the policy could have been terminated
according to section 110B, that does not alter our conclusion that the policy
terminated for nonpayment before Ralph tendered payment for the missed
premium. To be sure, had Ralph tendered payment on, for example, March 21,
2001 (after the date of the lapse notice but before the expiration of section
110B's three-month period), we would be dealing with a different case. But, he
did not tender payment until November 2001 and, thus, cannot take advantage
of Guardian's premature lapse notice

17

Guardian had in fact sent Ralph notices of his premium payment deadlines for
seven years

18

Guardian maintains that because Ralph did not respond in the district court to
its argument that the policy terminated due to his failure to pay premiums, he
has forfeited his right to advance his estoppel argument on appeal. We decline
Guardian's invitation to rule on that ground

19

According to Mass. Gen. Laws ch. 93A, 9(3), "[a]t least thirty days prior to
the filing of [a chapter 93A] action, a written demand for relief, identifying the
claimant and reasonably describing the unfair or deceptive act or practice relied
upon and the injury suffered, shall be mailed or delivered to any prospective
respondent."

20

Gaffney argues that transfer of the claims against him would be improper under
28 U.S.C. 1631 because that statute "directs a court to transfer an `action' over
which it lacks jurisdiction, rather than an individual claim."Hill, 795 F.2d at
1070. We decline the invitation to affirm the district court on this ground.
Because the district court granted Guardian's motion for summary judgment,
the claims asserted against Gaffney were the only claims that remained in the
action. Thus, even if the transfer statute prohibits the transfer of some but not
all claims in an action (and we question whether it does), it would not prohibit
transfer under the circumstances of this case. Cf. United States v. County of
Cook, 170 F.3d 1084, 1089 (Fed.Cir.1999) (finding that Congress "inten [ded]
... 1631 to permit the transfer of less than all of the claims in an action").

21

We note that there is a debate over whether 28 U.S.C. 1631 provides for
transfers only where a federal court lacks subject matter jurisdiction, or whether
it also applies where other types of jurisdiction are lacking, including personal
jurisdictionCompare Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir.2003)
(concluding that " 1631 ... applies to federal courts identifying any
jurisdictional defect, regardless of whether it involves personal or subject
matter jurisdiction."), and Renner v. Lanard Toys Ltd., 33 F.3d 277, 284 (3d
Cir.1994) (indicating that where personal jurisdiction is lacking, a court may
consider a transfer pursuant to 1631), and Ross v. Colo. Outward Bound Sch.,
Inc., 822 F.2d 1524, 1526-27 (10th Cir.1987) (same), with SongByrd, Inc. v.
Estate of Grossman, 206 F.3d 172, 179 n. 9 (2d Cir.2000) (noting that "the
legislative history of section 1631 provides some reason to believe that this
section authorizes transfers only to cure lack of subject matter jurisdiction"),
and Pedzewick v. Foe, 963 F.Supp. 48, 50 (D.Mass.1997) ("agree[ing] with the
line of cases limiting section 1631 to transfer for lack of subject matter
jurisdiction only"), and 15 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure 3842 (2d ed. 1986) ("[Section 1631]

is concerned only with subject matter jurisdiction. It has nothing to do with

personal jurisdiction or venue."). Those that construe 1631 narrowly do so in
reliance on the statute's legislative history, see, e.g., Pedzewick, 963 F.Supp. at
50 (noting that a Senate report issued when Congress enacted 1631, S.Rep.
No. 97-275, at 11 (1987), reprinted in 1982 U.S.C.C.A.N. 11, 21, 40, states in
part that the statute "would authorize the court in which a case is improperly
filed to transfer it to a court where subject matter jurisdiction is proper"), while
those that read the statute expansively generally rely on its language and
Congress' intent in passing it, see, e.g., Roman, 340 F.3d at 328 (observing that
"[t]he language of 1631 does not refer to any specific type of jurisdiction,
only referring broadly to jurisdiction" and that "a broad construction of the
statute is consistent with Congress's intent to protect a plaintiff against either
additional expense or the expiration of a relevant statute of limitations in the
event that the plaintiff makes an error in trying to select the proper court within
the complex federal court system" (internal quotation marks omitted)).
Although we are inclined to read 1631 as allowing for transfers where a
federal court lacks any type of jurisdiction (including personal jurisdiction), we
need not definitely decide the issue today, as Gaffney did not defend the district
court's denial of Ralph's motion to transfer by arguing that 1631 does not
permit transfer to cure defects in personal jurisdiction. See Smilow v.
Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 43 (1st Cir.2003) ("Issues
raised on appeal in a perfunctory manner (or not at all) are waived.").